In the United States Court of Federal Claims
Nos. 14-1248C & 16-589C (not consolidated)
(Filed: February 14, 2017)
**********************************
)
ENTERGY NUCLEAR ) Claims by buyer and seller of nuclear
GENERATION COMPANY, ) power plant for damages attributable to
) breach of a contract to dispose of spent
Plaintiff, ) nuclear fuel; unripe nature of seller’s
) claim; dismissal of seller’s claim without
v. ) prejudice, subject to renewal when claim
) ripens
UNITED STATES, )
)
Defendant. )
)
)
BOSTON EDISON COMPANY, )
)
Plaintiff, )
)
v. )
)
UNITED STATES, )
)
Defendant. )
)
**********************************
L. Jager Smith, Jr., Jager Smith, LLC, Jackson, Mississippi, for plaintiff Entergy Nuclear
Generation Company. With him on the briefs and at the hearing were Clare Cavaliero Pincoski,
Pillsbury Winthrop Shaw Pittman LLP, Washington, D.C., and Sam O. Morris, Entergy Services,
Inc., Jackson, Mississippi. Also with him on the briefs were Alex D. Tomaszczuk and Jay E.
Silberg, Pillsbury Winthrop Shaw Pittman LLP, Washington, D.C.
Richard J. Conway, Blank Rome LLP, Washington, D.C., for plaintiff Boston Edison
Company. With him on the briefs and at the hearing was Adam Proujansky, Blank Rome LLP,
Washington, D.C. Also with him on the briefs were Frederick M. Lowther, Blank Rome LLP,
Washington, D.C., Neven Rabadjija, Deputy General Counsel, Eversource Energy, Boston,
Massachusetts, and Nicholas W. Mattia, Jr., Lakewood Ranch, Florida.
Heidi L. Osterhout and Sarah Choi, Trial Attorneys, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washington, D.C., for defendant. With them on
the briefs and at the hearing were Alexis J. Echols and Kristin B. McGrory, Trial Attorneys,
Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington,
D.C. Also with them on the briefs were Chad A. Readler, Acting Assistant Attorney General,
Civil Division, Benjamin C. Mizer, former Principal Deputy Assistant Attorney General, Civil
Division, and Robert E. Kirschman, Jr., Director, Bryant G. Snee, Deputy Director, Scott D.
Austin, Assistant Director, Allison Kidd-Miller, Assistant Director, and Adam E. Lyons, Trial
Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice,
Washington D.C. Also with them at the hearing was Lisa Donahue, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Department of Justice, Washington D.C. Of
counsel was Jane K. Taylor, Office of General Counsel, United States Department of Energy,
Washington, D.C.
OPINION AND ORDER
LETTOW, Judge.
Entergy Nuclear Generation Company (“Entergy”) and Boston Edison Company
(“Boston Edison”) bring separate suits against the United States (“the government”), acting by
and through the United States Department of Energy (“DOE”), for claims related to the storage
of spent nuclear fuel (“SNF”) at the Pilgrim Nuclear Power Station (“Pilgrim”). Boston Edison
entered into a “Standard Contract” with DOE in 1983 while it owned the Pilgrim plant, and then
subsequently sold the plant to Entergy in 1999. Both Boston Edison and Entergy previously
sued the government for breach of contract on the ground that DOE failed its statutory and
contractual obligations to dispose of the SNF at Pilgrim, and the issues related to this breach of
contract have been extensively litigated in this court by both the seller and buyer of the plant.
See Boston Edison Co. v. United States, 64 Fed. Cl. 167 (2005) (“Boston Edison I”); Boston
Edison Co. v. United States, 67 Fed. Cl. 63 (2005) (“Boston Edison II”); Boston Edison Co. v.
United States, 80 Fed. Cl. 468 (2008) (“Boston Edison III”), appeal dismissed and remanded,
Boston Edison Co. v. United States, 299 Fed. Appx. 956 (Fed. Cir. 2008) (“Boston Edison IV”);
Boston Edison Co. v. United States, 93 Fed. Cl. 105 (2010) (“Boston Edison V”), aff’d in part,
rev’d in part, and remanded, Boston Edison Co. v. United States, 658 F.3d 1361 (Fed. Cir. 2011)
(“Boston Edison VI”); Boston Edison Co. v. United States, 106 Fed. Cl. 330 (2012) (“Boston
Edison VII”), appeal dismissed, No. 13-5053 (Fed. Cir. Mar. 15, 2013). The issues were last
litigated in 2012, when the court upheld a final judgment for Entergy for damages through
December 31, 2008 due to DOE’s partial breach of contract, and also dismissed Boston Edison’s
complaint “without prejudice and with leave to refile when costs to mitigate DOE’s breach of the
Standard Contract are incurred on decommissioning Pilgrim.” Boston Edison VII, 106 Fed. Cl.
at 343.
Entergy filed its present suit to recover damages that it incurred between December 31,
2008 and June 30, 2015 due to DOE’s ongoing partial breach of contract. Entergy Am. Compl. ¶
3.1 Subsequently, on May 18, 2016, Boston Edison filed suit to recover damages for DOE’s
breach of contract, alleging that its damages are now “ascertainable” because the
decommissioning of Pilgrim has allegedly begun. Boston Edison Compl. ¶¶ 1, 4, 19. Boston
1
Entergy submitted its complaint on December 30, 2014, and thereafter filed an amended
complaint on September 29, 2015.
2
Edison’s suit was prompted in substantial part by two material facts. First, in May 2012, the
Nuclear Regulatory Commission (“NRC”) approved a 20-year extension of Pilgrim’s operating
license, allowing the plant to operate through 2032. Boston Edison Compl. ¶ 16. Second,
notwithstanding this extension, by letter dated November 10, 2015, Entergy notified the NRC
that “it ha[d] decided to permanently cease power operations at the Pilgrim Nuclear Power
Station no later than June 1, 2019.” Boston Edison Compl. ¶ 17 (quoting Letter from John
Ventosa, Chief Operating Officer – North, Entergy Nuclear Operations, Inc. to NRC (Nov. 10,
2015), available at https://www.nrc.gov/docs/ML1532/ML15328A053.pdf).
Pending before the court is the government’s motion to dismiss Boston Edison’s
complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Rules of the
Court of Federal Claims (“RCFC”) and for failure to state a claim pursuant to RCFC 12(b)(6), or,
alternatively, to join Boston Edison’s claims with Entergy’s claims pursuant to RCFC 19(a).
Def.’s Mot. to Dismiss, and, in the Alternative, Mot. for Joinder of Entergy Nuclear Generation
Co. (“Def.’s Mot. to Dismiss”), No. 16-589C, ECF No. 9. The government also moved to stay
discovery and amend the case schedule in Entergy until the pending motion in Boston Edison is
resolved. Def.’s Mot. to Stay Disc. and Amend Case Schedule (“Def.’s Mot. to Stay”) at 1, No.
14-1248C, ECF No. 20. On January 17, 2017, the court temporarily suspended the discovery
schedule in Entergy, pending resolution of the extant motion in Boston Edison. Order of Jan. 17,
2017, No. 14-1248C, ECF No. 35. Now, for the reasons stated, the court dismisses Boston
Edison’s complaint without prejudice and denies the government’s motion to stay discovery in
Entergy as moot.2
BACKGROUND
A. Litigation History
On June 17, 1983, Boston Edison and DOE entered into a “Standard Contract” relating to
SNF at Pilgrim. Boston Edison III, 80 Fed. Cl. at 470-71. The Standard Contract and the
Nuclear Waste Policy Act of 1982, Pub. L. No. 97-425, § 302, 96 Stat. 2201 (1983) (codified at
42 U.S.C. § 10222), which was implemented in part by the Standard Contract, made DOE
responsible for collecting and disposing of Pilgrim’s SNF no later than January 31, 1998. Boston
Edison VII, 106 Fed. Cl. at 333. The Standard Contract also required Boston Edison to pay fees
to the government, and Boston Edison satisfied that obligation. Boston Edison VI, 658 F.3d at
1364. The government, however, has yet to fulfill its SNF obligations and is not expected to do
so in the foreseeable future. See Boston Edison VII, 106 Fed. Cl. at 333; Boston Edison Compl.
¶ 18; Entergy Am. Compl. ¶ 21.3
2
Because the pending motion in Boston Edison has been resolved, discovery shall resume
in Entergy. The parties shall propose a new discovery schedule within 7 days of the filing of this
opinion.
3
Notably, “[t]he government has breached similar contractual undertakings nationwide,
leading to numerous breach of contract actions.” Boston Edison VI, 658 F.3d at 1364.
3
In 1997, Massachusetts enacted legislation that required utilities, including Boston
Edison, “to sell their electricity generation assets and operations or to functionally separate their
generation operations from their transmission and distribution operations.” Boston Edison VI,
658 F.3d at 1364 (citing Mass. Gen. Laws ch. 164, § 1A (1997)). Boston Edison responded by
selling the Pilgrim plant, fuel, inventory, and land through a competitive auction to Entergy for
$80 million. Boston Edison VII, 106 Fed. Cl. at 333. Entergy also accepted the responsibility of
decommissioning Pilgrim and attendant storing of SNF in exchange for a decommissioning fund
of $428 million. Id.4 The final agreement provided Entergy with the rights to all claims post-
dating the sale, but a clause in the agreement gave Boston Edison the rights to any claims
“related or pertaining to the Department of Energy’s defaults under the DOE Standard Contract
accrued as of the Closing Date, whether relating to periods prior to or following the Closing
Date.” Boston Edison VI, 658 F.3d at 1365.
On July 12, 1999, one day before the closing date of the Pilgrim sale to Entergy, Boston
Edison filed its first suit in this court regarding SNF storage at Pilgrim. Boston Edison I, 64 Fed.
Cl. at 173. Boston Edison sought damages for the government’s partial breach of the Standard
Contract through a “diminution-in-value claim,” alleging that it “realized significantly less value
in the sale” to Entergy because the value of Pilgrim had been “significantly diminished” by
DOE’s breach. Boston Edison II, 67 Fed. Cl. at 65 (internal quotation marks omitted). In 2003,
while Boston Edison’s claim for partial breach of contract remained pending, Entergy filed its
first suit to recover damages for the government’s partial breach of the Standard Contract,
beginning on the date of the Pilgrim sale. Boston Edison VII, 106 Fed. Cl. at 334. In 2005, this
court partially consolidated Boston Edison’s and Entergy’s claims “for the limited purpose of
addressing issues concerning (1) contract formation, (2) contract implementation through the
date of sale of the Pilgrim Nuclear Power Station, and (3) Boston Edison Company’s diminution-
in-value claim and the government’s attendant offset claim against Entergy.” Boston Edison II,
67 Fed. Cl. at 67.
This court held a trial and entered judgment for Boston Edison in the amount of
$40,030,000, which represented the diminution of Pilgrim’s value due to DOE’s failure to
perform under the Standard Contract. See Boston Edison III, 80 Fed. Cl. at 485-96. The amount
was “the best evidence of what Entergy bargained for in the decommissioning fund to account
for SNF storage costs stemming from DOE’s breach of the Standard Contract.” Id. at 491. The
court then held an additional trial and entered judgment for Entergy for approximately $4.2
million. See generally Boston Edison V, 93 Fed. Cl. 105. That judgment represented mitigation
damages Entergy had incurred as a result of DOE’s “partial breach of the Standard Contract
through December 31, 2008.” Id. at 139. The award consisted of approximately $2.9 million in
costs associated with the purchase and installation of spent fuel racks, and approximately $1.3
million in NRC fees. Id. In making the award, the court rejected the government’s claim for an
offset or recoupment of Entergy’s damages against Boston Edison’s damages award, but also
4
“The initial decommissioning and storage payment was $471 million, but a portion of
the payment was ultimately returned to Boston Edison after the Internal Revenue Service
determined that the transfer of the decommissioning fund was entitled to favorable tax
treatment.” Boston Edison VI, 658 F.3d at 1364 n.2.
4
noted that “the government will have a valid claim for recoupment when the Pilgrim facility
ceases operation.” Id.
On appeal, the Federal Circuit affirmed, reversed, and remanded aspects of the court’s
two judgments. See generally Boston Edison VI, 658 F.3d 1361. The court of appeals reversed
Boston Edison’s judgment regarding its diminution-in-value claim, reasoning that “‘prospective
damages for anticipated future nonperformance’ are not recoverable in a partial breach case.” Id.
at 1367 (quoting Indiana Michigan Power Co. v. United States, 422 F.3d 1369, 1376 (Fed. Cir.
2005)). Although “Boston Edison expended money at the time of sale to add to the
decommissioning trust fund,” the damages for DOE’s pre-transfer breach could not yet be
determined because “the actual costs of SNF disposal” would not be known until “the time of
decommissioning.” Boston Edison VII, 106 Fed. Cl. at 334 (citing Boston Edison VI, 658 F.3d at
1367). But, significantly, the Federal Circuit stated:
We do not decide the respective rights of Boston Edison and Entergy relating to
any partial or total breach of contract by DOE that postdates the decommissioning
of the Pilgrim facility. The trial court did not address that aspect of the parties’
rights and obligations under the contract between them, and we decline to do so in
the first instance.
Boston Edison VI, 658 F.3d at 1367 n.4. The Federal Circuit also affirmed the judgment of
approximately $3 million in storage costs awarded to Entergy, id. at 1363, but remanded the
roughly $1 million award to Entergy for NRC fees, id. at 1370.
Subsequently, Entergy and the government entered a stipulation for final judgment,
resolving the issue related to NRC fees and requesting “an entry of final judgment for Entergy in
the uncontested amount of $4,141,621[.00] with an award of costs in favor of Entergy in the
uncontested amount of $27,039.72.” Boston Edison VII, 106 Fed. Cl. at 335 (internal quotation
marks and citation omitted). The court severed the partial consolidation of Entergy’s and Boston
Edison’s claims and entered final judgment for Entergy in accord with the terms of the
stipulation. Id. Two months later, however, the government filed a motion for reconsideration
of that judgment on the grounds that (1) the court erred when it severed the partial consolidation
because the court should not have entered final judgment for Entergy until it resolved Boston
Edison’s claims, or, alternatively, (2) the court erred by failing to dismiss Boston Edison’s
claims with prejudice at the time of the severance. Id. The court denied the government’s
motion, upholding the final judgment for Entergy and adhering to the dismissal of Boston
Edison’s claims on “prudential grounds,” explaining that the dismissal was “without prejudice
and with leave to refile when costs to mitigate DOE’s breach of the Standard Contract are
incurred on decommissioning Pilgrim.” Id. at 333, 343. The court held that the Federal Circuit’s
decision not to address the parties’ rights post-dating the decommissioning of the Pilgrim
facility, see Boston Edison VI, 658 F.3d at 1367 n.4, was an implicit remand to this court to
determine outstanding issues that were not addressed by the court of appeals, “including Boston
Edison’s nascent claim for decommissioning costs,” Boston Edison VII, 106 Fed. Cl. at 341-42.
The lack of a viable present claim by Boston Edison for costs attributable to DOE’s breach did
not mean that Boston Edison would never have such a claim. Rather, “presentation of Boston
Edison’s claim ‘must await a more concrete setting.’” Id. at 342 (quoting Molins PLC v. Quigg,
5
837 F.2d 1064, 1068 (Fed. Cir. 1988)). In that respect, the court stated that Boston Edison’s
“damages from [DOE’s breach of contract] will not be ascertainable until the decommissioning
of the Pilgrim plant,” id., and it “expressly reserve[d] Boston Edison’s right to bring a second
action when and if breach-mitigating costs are incurred from the decommissioning fund,” id. at
343 (citing Restatement (Second) of Judgments § 26(1)(b), (e)).
B. Present Claims
Entergy filed its current suit to recover damages incurred between January 1, 2009 and
June 30, 2015 as a result of DOE’s “continuing partial material breach of its unconditional
obligation to begin disposing of SNF generated by Pilgrim.” Entergy Am. Compl. ¶ 3. Entergy
alleges that the government partially breached the Standard Contract (Count I), breached the
implied covenant of good faith and fair dealing (Count II), and contravened the Takings Clause
of the Fifth Amendment (Count III). Entergy Am. Compl. ¶¶ 24-36. As the current owner of
Pilgrim, Entergy alleges that the government’s actions have caused and will continue to cause
Entergy to incur substantial costs in storing SNF at Pilgrim. Entergy Am. Compl. ¶¶ 4, 23.
Boston Edison’s suit to recover “at least $40,030,000” for DOE’s “material breach of its
unconditional obligation to dispose of” SNF at Pilgrim, Boston Edison Compl. ¶ 1, is premised
on its allegation that its damages are “ascertainable” because the decommissioning of Pilgrim
has begun. Boston Edison Compl. ¶¶ 4, 19. The legal theories it invokes are breach of contract
(Count I) and breach of the implied covenant of good faith and fair dealing (Count II). Boston
Edison Compl. ¶¶ 21-33. Boston Edison states that because of the alleged decommissioning,
DOE is now in complete breach of its obligations to Boston Edison. Boston Edison Compl. ¶¶
4, 20. It also “reserves all rights to recover presently unascertainable damages that may be
caused by DOE’s continuing partial breach of the Standard Contract.” Boston Edison Compl. ¶
28.
On August 17, 2016, the government moved to dismiss Boston Edison’s claims for lack
of jurisdiction pursuant to RCFC 12(b)(1) and for failure to state a claim upon which relief can
be granted pursuant to RCFC 12(b)(6), or, alternatively, to join Boston Edison’s claims with
Entergy’s claims pursuant to RCFC 19(a). Def.’s Mot. to Dismiss. Regarding subject matter
jurisdiction, the government alternatively argues that Boston Edison (1) lacks standing because
Boston Edison assigned its rights under the Standard Contract to Entergy for all claims post-
dating the 1999 sale, (2) is barred by the six-year statute of limitations that purportedly expired
in 2005, or (3) brings claims that are not ripe because Boston Edison has not yet incurred
damages. Id. at 14-20. Regarding failure to state a claim, the government asserts that Boston
Edison’s complaint should be dismissed because the claims (1) are for diminished value of the
Pilgrim plant, which is a theory that the Federal Circuit rejected, and (2) are for a total, rather
than partial, breach of contract, which conflicts with Federal Circuit precedent and is inconsistent
with “DOE’s ongoing breach of the Standard Contract.” Id. at 20-28.
Shortly thereafter, Entergy stated that Pilgrim “remains fully operational” and “is not
being decommissioned,” which facts it contended supported the dismissal of Boston Edison’s
claims as premature, and it opposed joinder of Boston Edison’s and Entergy’s claims. See
Amicus Curiae Br. of Entergy Nuclear Generation Co. Regarding Def.’s Mot. to Dismiss, and in
6
the Alternative, Mot. for Joinder of Entergy Nuclear Generation Co. (“Entergy’s Br.”) at 2, No.
16-589C, ECF No. 11-1. Boston Edison responded that its claims are ripe because
decommissioning of the Pilgrim plant had begun and that joinder is appropriate. See Boston
Edison Co.’s Resp. to the Amicus Curiae Br. of Entergy Nuclear Generation Co. Regarding
Def.’s Mot. to Dismiss, and in the Alternative, Mot. for Joinder of Entergy Nuclear Generation
Co. (“Boston Edison’s Resp. to Entergy’s Br.”) at 2, No. 16-589C, ECF No. 13-1. The
government’s pending motions have been briefed and were addressed at an evidentiary hearing
on November 10, 2016, which included testimony regarding the current status of the Pilgrim
plant. At the close of the evidentiary hearing, the court requested that Entergy “provide by way
of affidavit or declaration, the status of the decommissioning fund on a current basis and whether
there have ever been any withdrawals from the decommissioning fund.” Hr’g Tr. 84:1-4 (Nov.
10, 2016).5 Thereafter, Entergy submitted an affidavit by Peter L. Swigart, Director, Financial
Operations, Entergy Service, Inc. disclosing the amount in the Pilgrim Trust Fund as of October
31, 2016, and stating that:
No funds have been withdrawn from the Pilgrim Decommissioning Trust
Fund for the costs of any decommissioning activities, any decommissioning
planning activities, any spent fuel management costs, or any spent fuel
management planning activities.
Entergy’s Notice Regarding Req. Aff., No. 14-1248C, ECF No. 32; Aff. of Peter L. Swigart
(Nov. 30, 2016) (“Swigart Aff.”) ¶¶ 1, 6, 8, No. 14-1248C, ECF No. 32-1. The United States
and Boston Edison then responded to the Swigart Affidavit. See Def.’s Resp. to Dec. 8, 2016
Entergy Aff. (“Def’s Resp. to Swigart Aff.”), No. 16-589C, ECF No. 23; Boston Edison Co.’s
Resp. to the Entergy Aff. (“Boston Edison’s Resp. to Swigart Aff.”), No. 16-589C, ECF. No. 24.
STANDARDS FOR DECISION
The Tucker Act provides this court with jurisdiction “to render judgment upon any claim
against the United States founded either upon the Constitution, or any Act of Congress or any
regulation of an executive department, or upon any express or implied contract with the United
States, or for liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. §
1491(a)(1). This jurisdictional requirement is not at issue; the plaintiffs’ claims for breach of
contract fall within the jurisdiction of the Tucker Act. See Boston Edison I, 64 Fed. Cl. at 174-79
(addressing the court’s jurisdiction and finding that “[t]he Tucker Act grants this court subject
matter jurisdiction over claims arising under the Standard Contract”).
Under RCFC 12(b)(6), a complaint must “contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). To avoid dismissal, the
facts alleged must sufficiently “raise a right to relief above the speculative level, on the
assumption that all the allegations in the complaint are true (even if doubtful in fact).” Kam-
Almaz v. United States, 682 F.3d 1364, 1367-68 (Fed. Cir. 2012) (quoting Twombly, 550 U.S. at
5
The date will be omitted from further citations to the transcript of the evidentiary hearing
held on November 10, 2016.
7
555). In evaluating a motion to dismiss pursuant to RCFC 12(b)(6), the court must accept all
factual allegations in the complaint as true and draw “all reasonable inferences in favor of the
non-movant.” Sommers Oil Co. v. United States, 241 F.3d 1375, 1378 (Fed. Cir. 2001) (internal
citations omitted). Nonetheless, the court is not required to accept legal conclusions, even if
placed within factual allegations. Kam-Almaz, 682 F.3d at 1367-68 (citing Twombly, 550 U.S. at
555).
ANALYSIS
Given the Federal Circuit’s disposition of the earlier suits by the parties and this court’s
subsequent determination that Boston Edison’s damages will not be ascertainable until the
decommissioning of Pilgrim, see Boston Edison VI, 658 F.3d at 1366-72; Boston Edison VII, 106
Fed. Cl. at 341-43, the salient issue before the court is whether the decommissioning activities at
the Pilgrim plant have begun.6 The government would define the underlying issue differently,
instead contending that “the status of whether the Pilgrim plant is in operation versus
decommissioning does not resolve the viability of Boston Edison’s claim” because “the spent
fuel storage costs planned for 2012 and onward were still incurred by Entergy, irrespective of
whether the plant has begun decommissioning.” Def.’s Resp. to Swigart Aff. at 5-7.
Additionally, the government asserts that the financial source of Entergy’s spending for SNF
storage, whether or not from the decommissioning fund, is irrelevant because “[t]he viability of
Boston Edison’s claim depends on whether spent fuel storage costs have been incurred by
Entergy, not which dollar Entergy used to pay for those spent fuel storage costs.” Id. at 2-3.
6
In its pending motion, the government asserts that this court lacks jurisdiction on the
grounds that Boston Edison does not have standing because it does not possess any rights under
the contract after the 1999 sale, or, alternatively, that the statute of limitations expired in 2005.
Def.’s Mot. to Dismiss at 14-19. The court has already comprehensively addressed and rejected
these arguments. See, e.g., Boston Edison I, 64 Fed. Cl. 179-86 (rejecting the government’s
contention that Boston Edison lacked standing); Boston Edison VII, 106 Fed. Cl. at 343 (“[T]he
statute of limitations will not begin to run on Boston Edison’s claim until the time the
corresponding damages are actually incurred.”). Additionally, the government contends that
Boston Edison has failed to state a claim because the complaint is based on a diminution-in-
value theory that the court of appeals already declined to accept, see Def.’s Mot. to Dismiss at
20-26, but the court has considered and rejected this argument as well, ruling that the court of
appeals had recognized that Boston Edison would have a viable claim for damages when
decommissioning commenced, see Boston Edison VII, 106 Fed. Cl. at 339-43. The government
has neither acknowledged these prior decisions nor requested that the court reconsider them.
Additionally, the government asserts that Boston Edison has failed to state a claim
because Boston Edison brought a total, rather than partial, breach of contract claim, see Def.’s
Mot. to Dismiss at 26-27, but as Boston Edison notes, the complaint alternatively presents both
total and partial breach of contract theories, see Boston Edison Co.’s Resp. to Def’s Mot. to
Dismiss, and, in the Alternative, Mot. for Joinder of Entergy Nuclear Generation Co. (“Boston
Edison’s Resp. to Def.’s Mot. to Dismiss”) at 20-22, No. 16-589C, ECF No. 10. The court
accordingly rejects the government’s alternative ground for dismissal.
8
Boston Edison proffers similar arguments on these points, albeit proposing a different result, i.e.,
one in Boston Edison’s favor. See Boston Edison’s Resp. to Swigart Aff. at 1-2.
The government’s and Boston Edison’s arguments in this regard are not consistent with
the prior decisions of the Federal Circuit and this court. In reversing the judgment in favor of
Boston Edison on its earlier claim, the Federal Circuit explicitly stated that it was not addressing
the “respective rights of Boston Edison and Entergy relating to any partial or total breach of
contract by DOE that postdates the decommissioning of the Pilgrim facility.” Boston Edison VI,
658 F.3d at 1367 n.4 (emphasis added). In light of this disposition, this court subsequently held
that Boston Edison’s damages “will not be ascertainable until the decommissioning of the
Pilgrim plant,” Boston Edison VII, 106 Fed. Cl. at 342, and reserved Boston Edison’s right to
bring another action when “costs are incurred from the decommissioning fund,” id. at 343
(emphasis added). Contrary to the government’s position, the decommissioning of Pilgrim is
critical to Boston Edison’s claims because Entergy will expend funds for the storage of SNF
after decommissioning begins, resulting in ascertainable damages for Boston Edison. The fact
that Entergy is currently incurring costs for SNF storage will not be helpful to Boston Edison’s
claims if such SNF-related expenditures have not occurred as a consequence of the
commencement of the decommissioning process or originated from the decommissioning fund.
The court therefore must determine whether the decommissioning of Pilgrim has commenced.
On May 29, 2012, the NRC issued “Renewed Facility Operating License No. DPR-35 for
the Pilgrim Nuclear Power Station.” Entergy Ex. 1 (Letter from Nathaniel Ferrer, Project
Manager, Division of License Renewal, NRC to Michael A. Balduzzi, Senior Vice President &
Chief Operating Officer, Regional Operations, NE, Entergy Nuclear Operations, Inc. (May 29,
2012) (available at https://www.nrc.gov/docs/ML0910/ML091040423.pdf)) at 1.7 The renewed
license expires on June 8, 2032. Id. On November 10, 2015, Entergy notified the NRC, in
accordance with 10 C.F.R. § 50.82, “that it has decided to permanently cease power operations at
the Pilgrim Nuclear Power Station no later than June 1, 2019.” Entergy Ex. 2 (Letter from John
Ventosa, Chief Operating Officer – North, Entergy Nuclear Operations, Inc. to NRC (Nov. 10,
2015) (available at https://www.nrc.gov/docs/ML1532/ML15328A053.pdf)).8 In that letter,
Entergy stated that the “[t]he exact timing of the shutdown is expected to be decided in the first
half of 2016.” Id. In this respect, John Dent, the site vice president of the Pilgrim plant and an
employee of Entergy Nuclear Operations, Inc., testified at the evidentiary hearing held on
November 10, 2016 that Entergy has since decided to cease power operations of the Pilgrim
plant on May 31, 2019, and that it has informed the NRC of such plan verbally. Hr’g Tr. 38:2-8,
48:21 to 49:15 (Test. of John Dent).
7
The Entergy exhibits refer to exhibits admitted into evidence at the hearing held on
November 10, 2016.
8
“When a licensee has determined to permanently cease operations the licensee shall,
within 30 days, submit a written certification to the NRC, consistent with the requirements of
[Paragraph] 50.4(b)(8).” 10 C.F.R. § 50.82(a)(1)(i). The written certification “must state the
date on which operations have ceased or will cease, and must be submitted to the NRC’s
Document Control Desk.” Id. § 50.4(b)(8).
9
Additionally, Mr. Dent testified that the Pilgrim plant is currently fully operational and it
has not undertaken any activities related to decommissioning. Hr’g Tr. 43:1-24 (Dent).
Pilgrim’s next planned refueling outage is in the spring of this year, 2017, which will provide
sufficient fuel for Pilgrim to operate until May 31, 2019. Hr’g Tr. 51:3-13 (Dent). Pilgrim has
not reduced its budget or staff since Entergy decided that it intends to cease operations in 2019.
Hr’g Tr. 51:14-20 (Dent). Entergy’s most recent negotiations with the unions representing the
Pilgrim workforce resulted in new five-year contracts that expire in 2021, accounting for two
years of work that will be required after the shutdown of the plant. Hr’g Tr. 51:21 to 53:8
(Dent). Through June 1, 2019, Entergy is also committed to placing its power output into the
New England Power Pool, which comprises six New England states and helps to ensure
reliability in the regional power market. Hr’g Tr. 53:9 to 54:5 (Dent).
On December 8, 2016, Entergy filed the affidavit of Peter L. Swigart, who has “financial
oversight of decommissioning operations at Entergy Corporation nuclear facilities.” Swigart
Aff. ¶ 1. Pilgrim’s decommissioning fund, which Entergy received from Boston Edison in the
1999 sale of the Pilgrim plant, see Boston Edison VII, 106 Fed. Cl. at 333, continues to be
maintained by Entergy separate from the company’s other assets, Swigart Aff. ¶ 2. The fund is
held by the fund’s trustee, the Bank of New York Mellon. Id. ¶ 5. As noted previously, Mr.
Swigart explained that “[n]o funds have been withdrawn from the Pilgrim Decommissioning
Trust Fund for the costs of any decommissioning activities.” Id. ¶ 8; see also Hr’g Tr. 66:8-11
(Dent) (testifying that Pilgrim has not withdrawn any decommissioning funds for the planning of
SNF management after the plant ceases operation).9 Pilgrim has constructed independent spent
fuel storage installations to store SNF at the Pilgrim plant in spent fuel storage casks, but it has
not used any part of the decommissioning fund for that storage. Hr’g Tr. 56:1-25 (Dent).10
Entergy’s use of the decommissioning fund at Pilgrim is subject to the limitations
provided in 10 C.F.R. § 50.82(a)(8). Under this regulation, “decommissioning funds may not be
used for non-decommissioning related expenses, such as SNF storage.” Boston Edison V, 93
Fed. Cl. at 136 (citing 10 C.F.R. § 50.82(a)(8)(i)). The term “decommission” is defined as
follows in 10 C.F.R. § 50.2:
Decommission means to remove a facility or site safely from service and reduce
residual radioactivity to a level that permits–
9
Entergy has only withdrawn money from the fund for payment of taxes on the fund and
administrative expenses. Swigart Aff. ¶ 7.
10
The government focuses on the costs Entergy has already incurred to store SNF at
Pilgrim, asserting that these actions will benefit Entergy when decommissioning begins. See
Def.’s Resp. to Swigart Aff. at 9-11. The government’s argument is beside the point at hand.
Entergy’s current SNF-related activity has the purpose of benefitting current operations, and the
Pilgrim plant is still fully operational. Therefore, the SNF storage at Pilgrim presently only
benefits the operation of Pilgrim; the costs related to SNF when decommissioning begins are not
yet known.
10
(1) Release of the property for unrestricted use and termination of
the license; or
(2) Release of the property under restricted conditions and
termination of the license.
Subparagraph 50.82(a)(8)(ii) further provides that three percent of the decommissioning fund
may be initially used for decommissioning planning.11 Regarding SNF-related planning, the
NRC recently stated:
After consultation with the Office of General Counsel, the staff’s position is that
the initial three percent withdrawal from the decommissioning trust fund allowed
for decommissioning planning is limited to paper studies related to
decommissioning activities as defined in 10 C.F.R. [§] 50.2 and cannot be used
for spent fuel management planning.
NRC Inspection Report No. 05000271/2016001 at 3 (May 4, 2016) (available at
https://www.nrc.gov/docs/ML1612/ML16125A036.pdf).12
Given the testimony of Mr. Dent, the affidavit of Mr. Swigart, and the relevant
regulations, Entergy has not yet begun the decommissioning of the Pilgrim plant. While Entergy
certified that it intends to cease operations at Pilgrim in 2019, the plant remains fully operational
and has not undertaken any decommissioning activities. Additionally, no expenditures for the
storage of SNF at Pilgrim have been made from the decommissioning fund. Although licensees
are generally permitted to use three percent of the decommissioning fund for decommission
11
Subparagraph 50.82(a)(8)(ii) also states that an additional 20 percent of the fund may be
used when a licensee submits the certifications set forth in Paragraph 50.82(a)(1), but only 90
days after the NRC receives the post-shutdown decommissioning activities report (“PSDAR”).
The PSDAR, which must contain “a description of the planned decommissioning activities along
with a schedule for their accomplishment,” among other requirements, can be submitted “[p]rior
to or within 2 years following permanent cessation of operations.” 10 C.F.R. § 50.82(a)(4)(i).
The NRC is required to “make the PSDAR available for public comment.” Id. § 50.82(a)(4)(ii).
The notification of planned closure of Pilgrim submitted by Mr. Ventosa on November
10, 2015 under penalty of perjury, satisfied the certification requirement of Paragraph
50.82(a)(1).
12
Similarly, the relevant Treasury Regulation regarding decommissioning specifies that
“[t]he term nuclear decommissioning costs or decommissioning costs . . . does not include
otherwise deductible expenses to be incurred in connection with the disposal of spent nuclear
fuel under the Nuclear Waste Policy Act of 1982.” 26 C.F.R. § 1.468A-1(b)(6). Very recently,
the Treasury Department has issued a proposed rule that would include SNF storage costs within
the definition of nuclear decommissioning costs, but that rule is not final. See Nuclear
Decommissioning Funds, 81 Fed. Reg. 95929, 95930 (Dec. 29, 2016).
11
planning, Entergy cannot use that amount to plan the SNF disposal at Pilgrim because the
general rule does not extend to spent fuel management.
Boston Edison responds by relying on a final report issued by the NRC in 2000, which
stated:
The regulations are written so that when a licensee announces its decision to
permanently cease power operations at the nuclear power plant . . . the
decommissioning process is automatically initiated, and specific decisions
regarding the decommissioning process must be made within 2 years.
Boston Edison’s Resp. to Entergy Br. at 2 & Ex. A (citing Staff Responses to Frequently Asked
Questions Concerning Decommissioning of Nuclear Power Plants (Final Report), NUREG-1628,
§ 1.4 (June 2000) (available at https://www.nrc.gov/docs/ML0037/ML003726190.pdf)). In the
context of the Pilgrim plant, however, Boston Edison’s reliance on this report is unavailing. The
NRC’s report in 2000 only specifies when the decommissioning process is initiated, not when
the decommissioning of the plant itself begins. The report does not require a licensee to make
decommissioning decisions immediately, engage in decommissioning activities, or withdraw
money from a decommissioning fund. Entergy’s certification that it intends to cease operation of
Pilgrim in 2019 provides timely notice but no more. The statements of Mr. Dent and Mr.
Swigart indicate that Entergy has not yet undertaken any decommissioning planning or activities,
specifically in the context of SNF. This decision is consistent with the pertinent regulations. As
Mr. Swigart explained:
[N]o funds for any spent fuel management costs, or any spent fuel management
planning activities, can be withdrawn from the Pilgrim Decommissioning Trust
Fund without the NRC’s issuance of an exemption from its regulations restricting
decommissioning trust fund withdrawals to expenses for legitimate
decommissioning activities.
Swigart Aff. ¶ 9 (citing 10 C.F.R. § 50.82(a)(8) and NRC Inspection Report No.
05000271/2016001, discussed supra). And, Entergy has not sought an exemption from the
requirements set forth in the NRC regulations. See Swigart Aff. ¶ 9; Hr’g Tr. 68:14-18 (Dent).
Therefore, in light of the prior decisions regarding Boston Edison’s claims being
dependent upon decommissioning at Pilgrim, Boston Edison’s damages are not yet
ascertainable.13
13
According to the government, the court’s decision will result in Entergy controlling the
disposition of Boston Edison’s claims, which is “problematic because the two plaintiffs have
conflicting interests.” Def.’s Resp. to Entergy Aff. at 5. This postulate by the government is not
supportive of the ultimate result it seeks. When Entergy begins the decommissioning of Pilgrim,
it will continue to incur expenses for the storage of SNF. At that point, Boston Edison’s claims
then will become viable because damages for post-operation storage will be incurred.
12
CONCLUSION
For the reasons stated, the government’s motion to dismiss Boston Edison’s complaint is
GRANTED and the government’s motion to stay discovery in Entergy is DENIED as moot.
Boston Edison’s complaint in No. 16-589C is DISMISSED because its claim is not yet
ripe. The complaint is dismissed without prejudice and with leave to refile when costs to
mitigate DOE’s breach of the Standard Contract are incurred on decommissioning activities at
Pilgrim. In No. 16-589C, the clerk shall enter judgment in accord with this disposition.
No costs.
As noted supra, the parties in Entergy shall file a joint status report on or before February
22, 2017, proposing a schedule to complete discovery in that case.
It is so ORDERED.
s/ Charles F. Lettow
Charles F. Lettow
Judge
13